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HomeMy WebLinkAbout1986-12-22 Info Packet of 12/19City of Iowa City MEMORANDUM DATE: December 19, 1986 TO: City Council FROM: City Manager RE: Information in Friday's Packet Informal agendas and meeting schedule. Memorandum from the Economic Development Coordinator projected employment for CADSI. or regarding Memorandum from the Transportation Planner regarding federal transit grant application. Letter from the Senior Center regarding lighting. Letter from Thomas J. Shaff. Letter from St. Patrick Church in support of park for handicapped children Memo from City Atty. re Analysis of School District Proposal for Chapter 28E Agreement for Development & Operation Joint Swimming Pool Facility. �r" r City of Iowa City MEMORANDUM DATE: December 19, 1986 TO: City Council FROM: City Manager RE: Informal Agendas and Meeting Schedule December 22, 1986 Mondav 7:30 - 8:00 A.M. Special Informal Meeting - Council Chambers 7:30 A.M. - Discuss Joint Swimming Pool Project 28E Agreement 7:45 A.M. - Executive Session (Pending Litigation, Collective Bargaining) December 25 1986 Thursday MERRY CHRISTMAS - City Offices Closed December 26, 1986 Fridav HOLIDAY - City Offices Closed December 29, 1986 Monda NO INFORMAL COUNCIL MEETING December 30, 1986 Tuesday NO REGULAR COUNCIL MEETING January 1, 1987 Thursday HAPPY NEW YEAR - City Offices Closed January 12, 1987 Mondav 7:00 - 8:30 P.M. Council Chambers Informal Council Meeting - Agenda Pending January 13, 1987 Tuesdav 7:30 P.M. - Regular Council Meeting - Council Chambers January 19, 1987 Mondav 5:30 - 9:00 P.M. Special Informal Council Meeting to discuss FY88 Budget Proposals - (Location to be announced) January 21, 1987 Wednesday 4:00 P.M. - Johnson County Office Building Joint meeting of City Council and County Board of Supervisors - Separate agenda posted ao/i City Council December 19, 1986 Page 2 January 26, 1986 Monday 7:00 - 8:30 P.M. Council Chambers Informal Council Meeting - Agenda Pending January 27, 1987 Tuesday 7:30 P.M. - Regular Council Meeting - Council Chambers PENDING LIST Leasing of Airport Land for Commercial Use Newspaper Vending Machines Stormwater Management Ordinance Review Mesquakie Park Development and Name Change Appointments to Board of Adjustment and Human Rights Commission - January 13, 1987 Appointments to Broadband Telecommunications Commission, Committee on Community Needs, Historic Preservation Commission, Mayor's Youth Employment Board, Senior Center Commission, Airport Zoning Board of Adjustment and Housing Commission - January 27, 1987 I City of Iowa City MEMORANDUM Date: December 18, 1986 To: City Council From: Patt Cain, Economic Development CoordinatorQ Re: Projected Employment for CADSI In response to questions raised by Councilmembers on December 17, I have summa- rized the projected new employment for Computer Aid Design Software, Inc. (CADSI), as detailed In the attached table from the City's Community Economic Betterment Account application on behalf of this firm. The wage figures re- ported below were obtained from Mr. Rex Smith, CADSI President. Projected New CADSI Employment, FY86-88 Employment Category New Positions Salary Range Engineering 10 ;25,000-;40,000/yr. Sales/Marketing 9 $22,000-;21,000/yr. Finance/Accounting 2 512,000-525,000/yr. Clerical 2 510,000-;15,000/yr. Administration (KETEK) 3 510,000-515,000/yr. Production (KETEK) 10 $3.50-$5.00/hr. KETEK, a subsidiary of CADSI, was formed to expand into the personal computer peripheral business. Its first product, a cabinet for the Commodore computer line, was introduced in April, 1986. According to Rex Smith, CADSI now has a total staff of 24, which is slightly ahead of that projected for the current quarter. If you have any questions about this information, please call me at 356-5235, tp3/7 ti FROM CEBA APPLICATION 6/86 STAFFING SCHEDULE (FISCAL YEARS ENDING JUNE 30) 1985-6 1986-7 1987-88 tri Qtr tr 2 Qtr tr tr 1 er tr 3 tr 4 ' GENERAL AND ADMINISTRATIVE President 1 1 L 1 1 1 1 1 L Corporate Secretary 1 1 1 1 1 1 1 1 L TOTAL 2 2 2 2 2 2 2 2 2 I - ENGINEERING Development 4 4 5 5 5 6 6 7 7 Software 3 3 4 4 4 5 6 6 6 P Consulting 1 1 1 2 2 3 3 4 5 i Secretary 1 1 1 1 1 1 2 2 2 — TOTAL 9 9 11 12 12 15 17 19 20 I SALES Sales i Engineer 1 1 1 2 2 3 4 4 4 I Customer Support 1 1 1 1 2 3 3 4 4 Secretary i 0 0 0 0 0 0 0 1 1 TOTAL 2 2 2 3 4 6 7 9 9 FINANCE AND ACCOUNTING Controller L 1 L L 1 L Acct. Support 0 0 0 0 0 1 1 2 2 2 TOTAL 1 1 1 1 1 2 2 3 3 I. TOTAL CADSI STAFF 14 14 16 18 19 25 28 33 34 j. KETEK DIVISION i Production Staff 2 3 4 4 5 6 10 10 12 Harketing Staff L 1 1 2 2 2 4 4 4 - Adminietrative Staff 0 0 1 1 1 2 2 3 3 3 TOTAL KETEK STAFF 3 4 6 7 8 LO 17 17 19 TOTAL STAFF 17 18 22 25 27 35 45 50 53 NEW POSITIONS ADDED 1 5 8 10 18 28 33 36 6a I S AL Johnson County Council of Governments %410E%bshirqc)n&. bAUCitybVG52240 1 Date: December 17, 1986 To: City Manager and City Council, City of Iowa City � I From: Jeff Davidson, Transportation Planner i Re: Federal Transit Grant Application j Council has asked to be informed of all Federal transit grant applications filed by JCCOG in behalf of Iowa City Transit. In December we will be 1` filing 8 These f funds will beAuused tto operatetlow arCityantaTransitioinfFY87179,This amount is a 55% increase from last year's Section 9 operating amount. bdw3/4 i 1" IOWA CITY/ JOHNSON COUNTY SENIOR CENTER December 16, 1986 Steve Atkins City Manager Dear Steve: Our Pool League which is made up of 10 teams decided that the time had come when we needed additional lights over the pool table. We were willing to pitch in to purchase a light fixture, but our initial inquiries were disappointing. There were no lights in town and those in the catalogue were very expensive. We told Bette what we needed, what we could afford, and what we had done so far, Now, thanks to Doe Beverage and Jim Brachtel and Jim Daley of the Traffic Engineering Division, we have two light fixtures at no cost to us or the Center. Thank you for employing staff who respond so quickly to the needs of the citizens. It may have been a little job for them, but it means a lot to us. Sincerely, At/ cc: Jim i el Daley Jim Daley �U ao&-1 To utu/, `Y.171 BECEIVEODEC ? 1986 �7� way �c J,& „tai ¢v e 7'e a Jt�aw `ran (fiscdtir� �v�5�i� ar c ey�ww Gn2'�t 1�, d�+2r.,a �J rwt yi r !wr Way � c 4w+ /kwciars . �tyuuc.sl2lysw, I kq You_ Fv((oi �Jiur� PIDf OWil �i f'<y/Ill& Ai2rQi'a�i U� fW8� V {� ?�% /CP� 16fbdec-- Chi fv _. --- -vr a t Alm Ww Ai/lro,+" �Anr' 1v��J�u /b 6eW� Sor'w-d &4 {r 14C IW-.� hog4� wa4i,Q�,uNa� /%/>it (oSxt Ye a^ u14 a ono/ �cPuh n ya..l�, kc yo rti /cvc G� ao1s Leccer ur support Tor e, Inc, park St, Patrick Church ,developmdeMopment proposal. . 228 East Court Street Iowa City, Iowa 52240 REV. M. EUGENE BENDA (319) 337.2858 J" II.ELu 17 � to a oleo r City of Iowa City MEMOR4NDVM - Date: December 19, 1986 To: Mayor William Ambrisco and City Councilmembers From: Terrence L. Timmins, City Attorney Dale Helling, Assistant City Manager Terry Trueblood, Directors of Parks & Recreation Kevin O'Malley, Assistant Finance Director Mike Moran, Recreation Superintendent Re: Analysis of School District Proposal for a Chapter 28E Agreement for the Development and Operation of a Joint Swimming Pool Facility Introduction: On July 2, 1986, after voter approval of a bond issue for the construction of staffYcommenced istrict negotiationsoint s on the teormsfaofl atyCha City terand 28 school District nt execution by both bodies. Initial discussions between those staffs midenti- fied major areas of concern that had to be addressed, and both sides identi- fied their respective positions negotiaton effort, in general terms. In order to focus the iit was agreed that the City would prepare an initial draft of the agreement. The draft was submitted to School District staff on August 1st, Thereafter, negotiations proceeded through October 23. At that time, several issues were left unresolved, and Councilmember Courtney re- quested that those issues be discussed by the Board to see if there was any chance for movement on their part. The Board responded to this request on December 11, when they presented to the City a revised draft of the 28E Agreement, which had been adopted and executed by the Board. At the City Council's request, I will in this report present an analysis of the differences between the City's initial draft of the Chapter 28E Agreement for the Joint Pool Facility, and the School District's recently redraft of that Agreement. 14y effort in this regard will be to proceed through the Agreement from beginnin submitted upon which the City and School District have anddistoeedentify those issues issue identified, I will first of all set forth thePositioninitially such taken by the City, as reflected in the City's original draft of the Agreement. I will then attempt to describe the positions taken by the parties on each of these issues during staff level negotiating sessions, indicating instances where City staff felt consensus had been achieved and indicating which issues indicate had been left unresolved at the close of those negotiationsues , Finally, Dis- trict, astreflected ons now in the draft taken on Chaptere28E Agreement recently ap- proved by the School Board, Y the School Dis- ao/7 i i i Background: As an initial comment to frame my analysis and discussion, I would point out that a City staff team, composed of representatives from the City Manager's office, the Parks and Recreation Department, the Finance Department, and the Legal Department, worked together to prepare the initial draft of the Chapter 28E Agreement. This team had a number of goals in mind. First of all, we recognized that we were working to implement the recommendations made by the Pool Committee in March of this year, and the Memorandum of Agreement adopted by the City Council and the School Board in May. We recognized that our goal was to prepare an agreement which put the spirit and intent of those earlier efforts into a workable document. Of necessity, that effort was one of putting "meat on the bones," so to speak, because neither the Pool Committee nor the City Council and School Board had had the time or detailed informa- tion available to get down to the level of detail necessary for an agreement of this nature. i We recognized very early on that the most difficult part of the agreement would be those areas related to budget and cost share items for ongoing operation and maintenance, and the method of calculating the respective cost shares of the parties. Based on the City Attorney's earlier experience in I administering and redrafting a Chapter 2BE agreement for a joint governmental facility, we knew and understood the importance of being as specific as pos- sible on these issues, so that future staff and Councilmembers would not have to struggle with the meaning of these provisions in the context of future City/School District discussions. Our effort was to establish some very clear and precise language and formulas at the outset, in order to reduce the Possibility for confusion and argument in the future. In drafting the cost share language, and in deciding what the cost share items should be, we were mindful of the cost share data considered by the Pool Committee and set forth in its report and recommendation. Further, we approached the matter from a perspective that has been reflected throughout the public discussion of the project, which is that the School District would share costs on those ex- penses which the District would incur if it were to build, own, and operate its own pool facility. Particular categories of cost share items were de- rived from this background, as well as the provision that the School District would share those costs in the same percentage proportion as their percentage of pool usage, which was estimated to be 30%. This formula and this percent- age were consistent with data found in the Committee report and recommenda- tion. The establishment of a minimum cost share percentage was consistent with both the Memorandum of Agreement and the data in the Pool Committee report. The remainder of this report will involve a point -by -point discussion and analysis of the Chapter 28E Agreement in light of this background. Copies of the Memorandum of Agreement, the City's original draft of the Chapter 28 E Agreement and the School District's recent redraft of that Agreement are appended for your reference. ao 17 Discussion and Analysis: Part I of Chapter 28E Agreement. Paragraph 5 - legal Description and Form of Deed for Pool Site. The City's original draft of the Chapter 28E Agreement provided that the school district would convey certain land (described in Exhibit A) to the City, under the form of warranty deed which was to be set forth as an exhibit to the Agreement. Although the exact legal description of the property has never been determined pursuant to survey, the City and the School District have generally agreed where the joint pool facility will be located on School District property adjacent to Mercer Park. Pursuant to the Memorandum of Agreement which the parties adopted earlier, the Chapter 28E agreement as drafted by the City provided that the pool site would revert to the school district in the event the City abandoned the pool. This reversionary provision was placed in the Chapter 28E Agree- ment, and is also reflected in the form of warranty deed attached to the Agreement. In the draft of the Chapter 28E Agreement recently adopted by j the School District, they have deleted reference to the exhibit contain- ing tie legal description, probably because a legal description was not available to them when they drafted the Agreement, and they also deleted reference to the exhibit containing the form of warranty deed. Since the School District's ultimate reversionary rights will be determined by reference to the warranty deed, and not by reference to the Chapter 28E agreement, it is advisable that the parties determine in advance exactly what those reversionary rights will be, and put them in the deed form. Furthermore, since the Chapter 28E agreement is part real estate contract and part lease, it is very advisable that it contain the legal descrip- tion of the property involved for recording and abstracting purposes. I The form of the agreement which is ultimately executed by both the City and t,%e School District should contain a legal description of the prop- erty. Part II of the Chapter 28E Agreement. Paragraph 2 - School District Approval of Plans and Specifications. In the City's original draft of the Chapter 28E Agreement, we proposed that the school district formally approve the design of the joint pool facility prior to award of the construction contract. This provision, it was t,.ought, would protect both parties from having the City build some- thing which the School District did rot want. We proposed that the Schoo' District approve of the design by passing a resolution approving the plans and specifications for the joint face i y, n its recent redraft of the Chapter 28E Agreement, the School District has proposed that it approve the plans and specifications by motion. Although this item was never discussed during the negotiations, a reso ution is prefer- able in this circumstance. Because a resolution is a written document, it is much more precise and susceptible of proof. A motion on the other hand, is someone's recollection of what was said or done, is often impre- cise, and is more difficult to prove up o?e 1T Paragraph 4 - Estimated Cost of Construction. -t In the City's original draft of the Chapter 28E Agreement, the parties were to agree that the City would be bound to accept a bid for construc- tion of the joint pool facility only if the low bid received would allow the facility to be constructed as designed for an amount not exceeding the estimated cost. In the City's draft, a blank was left to fill in the estimated cost when that figure became available. In their recently adopted draft of the Chapter 28E Agreement, the School District deleted the blank space for the estimated cost amount, again, probably, because it was not available to them when they drafted the agreement. The agree- ment which is ultimately executed by the parties should contain the amount of the estimated cost of construction. Paragraph 6 - School District Contribution to Cost of Construction/Pay- ment Schedule. In the City's initial draft of the Chapter 28E Agreement, it was proposed that the School District pay its $500,000 contribution to construction costs in installments. The City proposed that the first installment be in the amount of $100,000, and that it be paid to the City within 30 days of City's award of the construction contract for the project. The bal- ance of $400,000 was then to be paid to the City in periodic progress payments, each payment to be made within 15 days of the City's approval of aprogress payment to the construction contractor. The amount of each School District periodic progress payment was to be proportional to the amount being requested by the contractor. In other words if the con- tractor's first request for a progress payment amounted oto 2% of the total contract price, then the School District's first periodic progress Payment would be 2% of the $400,000. The City's draft proposal also called for a final accounting and a final payment by the School District in the event of cost overruns. During negotiations, School District staff objected to the $100,000 payment "up front", and suggested instead that the entire $500,000 be spread out in proportional progress payments over the course of construc- tion. City staff countered this proposal by suggesting that the amount of the initial "up front" payment be reduced to $50,000 or $25,000. However, this issue was apparently never finally resolved, and the par- ties moved on to other issues. Agreement was reached to allow the School District to make their progress payments 3D days after City's approval of contractor's progress payments, instead of 15 days as originally proposed by the City. The cost overrun issue was also discussed during the negotiations, and City staff agreed to limit the School District's responsibility to $500,000, and not require them to pay any amounts in excess of that for cost overruns. In the recent draft of the Chapter 28E Agreement submit- ted by the School District, they have proposed that the Distrct not be required to make any "up front" contribution, and that their $500,000 contribution be spread out in prorata periodic progress payments, based on the contractor's periodic requests for progress payments. ao17 5 Paragraph 7, 8, 9, 10 and 11 - Final Accounting/Final Payment. In the City's original draft of the Chapter 28E Agreement, paragraphs 7-11 in Part II set forth provisions and procedures for conducting a final accounting of construction costs, and for a final payment by the School District. In its recent proposal, the District has proposed to delete entirely paragraphs 7 through 11. City and District staff did not discuss such a deletion during negotiations. Although portions of paragraphs 7 through 11 were included in order to provide for payment of cost overruns by the School District, and should therefore be deleted since the School District will not be responsible T or cost overruns, other portions of these provisions are still neces- I k. sary. For example, paragraph 8 contains specific language indicating that in the event the facility is constructed for an amount less than the amount of the construction contract as awarded, the School district is nonetr.eless obligated to make a principal contribution of not less than $500,000 toward the cost of construction. Furthermore, if that event were to occur, there would be no provision in the agreement for the City to cevduct a final accounting and to obtain unpaid portions of the $500,000 School District contribution. Consequently, in order to protect the City in this eventuality, portions of these paragraphs will have to be retained in any agreement which is eventually executed by the City and the School District. Part III of the Chapter 28E Agreement Parag-aph 1 - Commencement of Lease. In the City's initial draft of the Chapter 2BE Agreement, it was provided that the School District's leasehold rights in the joint pool facility would commence upon the School District's final payment of its contribu- tion toward the cost of construction. In the recent draft of the Chapter 28E =greement submitted by the School District, they have proposed that the School District's leasehold rights commence upon the day that the City accepts the project as complete and accepts final payment of the Schoc" District's share of construction costs. Since those two events coulc easily occur on separate dates months apart, this amended provision is probably unworkable. We would suggest that leasehold rights commence on tt= day the City opens the pool for public usage. I Para:^aph 2 - Possession and Use of Premises. In tke City's initial draft of the Chapter 28E agreement, the leasehold premises was 'to include the office, storage area, and locker rooms Iden- tifiet on Exhibit C to the Agreement. The office area was to be reserved to exclusive School District use. The School District was to have shared or exclusive use of the storage area and locker rooms when they were using the pool, as per the Pool Use Schedule. During negotiations, the Scho" District indicated that they had to have exclusive use of the office and storage area during the entire term of the lease in order to permi. ongoing operation of their programs from year to year. The City agree) to this proposal, and it is now reflected in the School District's recent draft of the Chapter 28E Agreement. 6 During those negotiations, the School District also indicated that they wanted exclusive use of two locker rooms when they were using the pool. In response to this proposal, City staff indicated that it would be appropriate to give the District exclusive use of one or two locker rooms for large gatherings, classes, swim meets, etc., when appropriate and necessary. This is obviously an area where the agreement has to provide flexibility in scheduling. In the recent draft of the Chapter 28E Agreement submitted by the School District, the School District would have exclusive use of two locker rooms whenever they were using the pool. Paragraph 4 - Operation and Maintenance. In this paragraph of the Agreement, the respective duties of the parties for operation and maintenance is spelled out. Basically, in undertaking to own and operate the facility, and lease it to the School District, the City assumes responsibility for operation and maintenance of the pool. The maintenance duty applies to building grounds and equipment, and the supervisory duty includes supervision of public use of the pool and general supervision of the entire facility. However, the agreement herein provides that the School District shall have the responsibility to provide appropriate personnel to supervise use of the pool by its stu- dents and staff. In the draft of the Chapter 28E Agreement recently submitted by the School District, they have added additional language indicating that the School District shall have "sole responsibility" for the supervision of students and staff. Although the amendment of this paragraph was not discussed during negotiations, we decided that this provision was added in an attempt to allay City fears concerning City liability for its general supervisory duties. This amendment should be viewed in the context of the discussion of indemnity, hold harmless, and liability insurance issues which are discussed under Part IV, paragraph 4. Paragraph 5 - Line Item Budget (Exhibit C) and Cost Share Items In the City's initial draft of the Chapter 28E Agreement, it was proposed that the School District contribute to the City each year an amount equal to 30% of the cost share items identified in the budget for the pool facility, or a percentage contribution to those cost share items equal to its actual annual percentage of pool usage, whichever was greater. During negotiations, City and District staff were unable to agree what the minimum cost share percentage should be. In its recent draft of the Chapter 28E Agreement, the District has agreed to the 30% minimum cost share figure. In its initial draft of the Chapter 28E Agreement, the City had proposed identifying cost share items by reference to a City line item budget for the pool facility, which budget the City would prepare in advance each year and submit to the School District. Exhibit C was the first year's budget for the facility. The City had proposed that the School District would share costs on the following line items in that proposed budget (see Exhibit C): A0/7 7 Supervisor (45% of one FTE) Maintenance workers (full-time and temporary employees = 2 FTE) Cashiers/Supervisors (temporary employees) Office supplies/miscellaneous supplies Operating supplies (pool chemicals and supplies) Repair and maintenance supplies Administrative services (bookkeeping, accounting, data processing) Communications (telephone) Property insurance Liability insurance Utility services (gas, electric, water and sewer) Building repair and maintenance The first year's budget was to be approved as part of the Chapter 28E Agreement, and this would then establish what the School District was responsible to pay in the first year. Exhibit C was then to serve as the model for future year's budgets, and for cost shares in those years. The use of a line item budget, Exhibit C, to determine cost share items and fix their amounts was of course discussed extensively during negotia- tions. The City explained that it used this methodology to eliminate the possibility of confusion and argument in the future. The School District disputed particular items in that budget being shown as cost share items, and they disputed the amounts of some of those items, but they never questioned the concept of using the line item budget for this purpose. In the draft of the Chapter 28E agreement recently submitted by the School District, the District has deleted Exhibit C and all references to it. Instead, they identify in very general terms what the cost share items would be, and the items identified have no cross references to any City budget codes or line items. The problem with this proposal is that it doesn't really identify in terms commonly acceptable to and understandable by both parties what the cost share items really are. Secondly, it leaves the entire first year budget up in the air. In essence, under the District's latest proposal, the Chapter 28E Agreement becomes an agreement to agree on the exact definition of cost share items and on a first year budget at some unde- termined point in the future. In addition, their cost share proposal as to the number and type of City personnel to service the facility appears to fall short of what the City originally proposed and what the School District agreed to in negotia- tions. This could be attributed to differences in terminology between the City and the School District. Furthermore, the School District has chosen not to include as cost share items the following: cashiers/super- visors, office/miscellaneous supplies, telephone, and liability insur- ance, administrative services, building repair and maintenance. These items were included in the City's initial proposal, and City staff did agree during negotiations to delete telephone expense. Finally, the Schocl District has included a specific provision indicating that they will not be charged for any repairs or supplies relative to the struc- tural parts of the building, including the pool itself. This provision appears to be directly at odds with paragraph 6 of the Memorandum of Agreement, and the City's initial draft of the Chapter 28E Agreement, in Roil 8 Exhibit C, which indicates that the District will share costs of "build- ing repair and maintenance." This cost item, as well as the other cost share items identified in City's Exhibit C, are all costs which the School District would have to budget for and expend if the District was to build, own, and operate a pool facility. Liability insurance is also such a cost share item. I will discuss the School District's deletion of that cost share item in my discussion of the "indemnity and hold harm- less" provision found in Part IV, paragraph 4 of the Agreement. Paragraph 5 - Formula for Determining Actual Annual Percentages of Use. In the City's initial draft of the Chapter 28E Agreement, we undertook to define an important element in the cost share formula. When the project was in the early stages, it was generally agreed that the parties would share costs in the same proportion as each used the pool facility. Al- though simple sounding, this formula had some interesting variables. If the City and the School District both use the pool during the same hour, how would that hour's time be allocated between them? Assuming that the School District's hours of usage remained constant, could the City change the overall hours of operation (the base) so as to increase or decrease the base, and thus decrease or increase the District's used percentage? In dealing with these variables, the City chose to both put the formula into words (Part III, paragraphs 3 and 5), and to put it into a words and numbers formula graphically indicating how it was intended to work (Exhibit D). Once again, this effort was made to prevent future confu- sion and argument over how the formula was intended to work. During negotiations, there was considerable discussion of the formula and how it would work. District staff expressed the concern that if the City reduced the overall hours of pool operation, the District's percentage of pool use and its cost share would increase. We explained that Part III, paragraph 3 locks the City into specified hours of operation and that this could only be altered by mutual agreement. At the close of this discussion, City staffers were under the impression that District staffers understood and accepted the formula. In the School District's recently adopted draft of the Chapter 28E Agree- ment, they have in Part III, paragraph 5 deleted all reference to Exhibit D and have deleted that exhibit entirely. In lieu of Exhibit D, they have set out a two paragraph statement or description of how the pool use formula would work. The formula therein expressed departs from the formula developed by the City in one particular, Under the City's for- mula, if the parties were to agree to reduce the overall hours of pool operation (the base), with the District— ours of use remaining con- stant, the District's percentage of usage wouldincrease, and so would the District's percentage allocation of cost. On e o er hand, if the base were increased, with District usage remaining constant, the Dis- trict's perce�e of usage would decrease, and so would its percentage allocation of cost, PW7 �F_ -I 9 Under the District's recent proposal, this inverse relationship would only work in their favor. If the overall hours of pool operation were to increase, the District's cost share would decrease. However, if the ove�T--hours of pool operation decreased, the School District's cost share would not increase. Regardless how the use allocation formula works, the agreement would not permit the District's cost share to slip below 3M. City staff believes L. that the District's proposal in this regard is not necessary in that the District is protected by the language of Part III, paragraph 3, and by Exhibit D, which establish the overall hours of pool operation, and which j cannot be altered except Ty mutual agreement. Paragraph 5 - Unbudgeted Cost Items. I In its initial draft of the Chapter 28E Agreement, the City proposed that in the event it incurred unbudgeted costs during the year (e.g. uninsured L idamage due to vandalism, storm, fire, etc.), it would report those costs in its year-end reconciliation report to the District, and the District would be required to share in those costs. This provision was not discussed during negotiations, but the District has deleted it from its recent proposal. Since such costs would probably be paid under the "building repair and maintenance" line item, if the District agrees to contribute to that cost, this provision could be deleted, i..., Paragraph 6 - Assignment and Sublease. In the City's initial draft of the Chapter 28E Agreement, the City re- stricted the District's right to assign or sublet the pool, and indicated that the District could not charge fees to any person, group, or entity using the pool facility under its auspices, except for (1) entry fees for competitors in competitive swim events, and (2) fees to cover their cost of supervising students or faculty parties sponsored by the District. i During negotiations, it was agreed that the first exception noted above would be expanded to allow collection of s ectator fees at competitive swim events, and that the second exception wou a expanded to allow collection of fees for supervision of fitness programs for students, i faculty and staff of the District. It waseso agree at the District would be permitted additional uses if it was acceptable to the City. The idea behind these restrictions is to prevent the District from going into competition with the City in the sponsorship of fee generating programs, recognizing the legitimacy of District sponsorship of certain programs for District students, faculty, and staff. In its recent proposal, the School District has substituted new language which is less restrictive of its ability to sponsor fee generating pro- grams than the restrictions est icti 9 ons which were negotiated and discussed above. ,?o 17 10 Paragraph 7 - Renewal. In the City's initial draft of the Chapter 28E Agreement, the City pro- vided that the District could renew the lease for additional terms, but left blank the number of such additional terms, and the duration of each renewal term. Our intent was to allow the District to make a proposal in this regard. In initial discussions, the District proposed four renewal terms of five years each, or 20 years. This potential 20 year renewal, on top of a ten year initial term, yielded a lease with a total potential 30 year term. City staff thought this to be near the upper limit of the pool's useful life, and we countered with a proposal for two additional terms of five years each (ten years), or a total potential term of 20 years. It was our impression that this was acceptable to the District. In their recent proposal, the School District has returned to its initial proposal of four renewal terms of five years each (total potential 30 year term). Furthermore, the District has also proposed that renewal would occur automatically unless the District notified the City of its intent not to renew 180 days in advance of the expiration of the term of the lease. City staff still is of the opinion that a total potential lease term of 30 years is too long, but has no objections to the automatic renewal feature. Part IV of Chapter 28E Agreement. Paragraph 4 - Indemnity and Hold Harmless. The major provision at issue in this portion of the Chapter 28E Agreement is the indemnity and hold harmless provision found in paragraph 4. As I indicated earlier, this issue is closely tied to the liability insurance cost sharing issue. Both issues have to be addressed and resolved to- gether. In the City's initial draft of the Chapter 28E Agreement, it was proposed that the City's liability insurance premium for pool coverage be included as a cost share item, and that the District contribute to the payment of that expense each year. It was also proposed that the School District agree to indemnify, defend, and hold the City harmless for the District's negligence in supervising use of the pool by District students, faculty, staff, invitees, etc. In return, the City would agree to indemnify, defend, and hold the District harmless from the City's negligence in the design, construction, maintenance, or general supervision of the pool facility. This was thought to be a fair arrangement. If the District was to build, own, and operate a pool facility, they would have risk for negligence in the design, construction, operation, maintenance, and general supervision of the facility, and they would have .to insure that risk. We are aware that the District carries coverage for swimming pools under the compre- hensive general broad form endorsement carried by school districts throughout the state, even though the Iowa City Community School District A 017 T II does not presently own or operate a pool. However, while this insurance coverage would insure the District's risks in the event the District owned and operated a pool, City staff oes not believe that that coverage would extend to cover the CitX's'risks in owning and operating a joint pool facility, and in leasing it to the District. During negotiations, School District staff objected to the payment of the liability insurance cost share item. In an effort to resolve the matter, an alternate proposal was submitted to the District. Under that proposal (which is appended to the end of the City's initial draft), the District would not have to contribute to the City's liability insurance expense for the pool, but in return the District would agree to indemnify, de- fend, and hold the City harmless, and waive subrogation rights, as to City negligence in the design, construction, operation, maintenance, and general supervision of the facility. If the District would not share in the City's cost to insure against these risks, then the District would have to accept these risks as to their students, faculty, staff, invitees, spectators, etc. The alternate proposal was drafted in such a way that if the District opted at some point in the future to share the City's liability insurance costs, the City would then once again accept these risks. In its recent proposal, the District has basically taken the position that they won't share in the City's costs to insure these risks, nor will the District accept those risks as to District students, faculty, staff, invitees, and spectators using the facility under their auspices. X0/7 J L. I Fi fj y MEMORANDUM OF AGREEMENT May 1986 i i MEMORANDUM OF AGREEMENT May 1986 MEMORANDUM OF AGREEMENT CITY OF IOWA CITY -IOWA CITY COMMUNITY SCHOOL DISTRICT PROJECT TO CONSTRUCT A JOINT SWIMMING POOL FACILITY This Memorandum of Agreement is made on this /, � day of May, 1986, by and between the Iowa City Community School Df -strict and the City of Iowa City, Iowa, by their respective representatives, David L. Cronin, Superin- tendent of the Iowa City Community School District, and William J. Ambrisco, Mayor of the City of Iowa City. Both governing bodies of the School District and the City of Iowa City have previously entered into a Memorandum of Agreement providing for a process to plan a joint venture swimming pool project. This Memorandum of Agreement will supplement the previous agreement and state the present intentions of the parties in connection with the development of the joint facility. This Memorandum of Agreement will be submitted to the respec- tive governing bodies and will be effective upon approval by both govern- ing bodies and execution by their respective representatives. The School District and the City of Iowa City have been studying the feasibility of planning and constructing a joint venture swimming pool facility to be located in the City of Iowa City, Iowa. The School Dis- trict and City staff along with the joint planning committee appointed by the two governing bodies have held meetings, secured architectural serv- ices for a preliminary design, reviewed preliminary designs and prelimi- nary cost estimates, investigated and recommended a site for the joint facility, identified the needs for the joint facility, consulted with legal counsel to develop a plan for financing and operating the joint facility, and investigated other matters relating to the project. Upon receiving reports from the committee and staff, each of the governing bodies wish to proceed with the development of the joint facility subject to approval of the overall, final plan for the project, including a defi- nition of each party's rights, responsibilities and liabilities to be stated in an agreement between them as authorized by Chapter 28E, the Code of Iowa. The School District and the City of Iowa City intend to mutually agree upon all issues for the complete development of the joint facility and, at this time, wish to state an intent to enter into a Chapter 28E lease -management agreement that will provide for the following terms and conditions, all subject to each governing body approving the final project plans and terms, to -wit: 1. Site Selection. The swimming pool facility will be located on prop- erty owne y the City of Iowa City. The subject property is pres- ently owned by the School District and lies just west of the existing Mercer Park swimming pool facility and on the easterly portion of the School District grounds. When all contingencies have been completed and assurances made that the property will proceed, the School Dis- trict will donate the subject property to the City subject to reversionary rights should the facility ever be abandoned. A proper survey of the required land will be obtained by the City and a reason- able amount of land to accommodate the planned facility will be trans- ferred to the City. a0/7 -2- 2. Ownershi p. The facility will be owned by the City of Iowa City, Iowa and subject to a lease -management agreement with the Iowa City Commu- nity School District. The lease -management agreement will be for an initial 10 -year period with provisions for guaranteed renewal. The lease -management agreement will provide the School District a speci- fied minimum level of usage of the facility during the initial term of the lease or any renewal term. 3. Pro ect Costs. The initial construction of the project will be paid y a $500,000.00 contribution from the School District with the bal- ance payable by the City of Iowa City. In addition, the School Dis- trict will contribute land to the City of Iowa City as described in Paragraph 1 of this Agreement and will also agree that should the City decide in efuture to expand the School District willdonateland norh northerly from cthe tIntended sitdue e oh Bradford Drive to accommodate such expansion. 4. Management of the Facility. The parties will, in the lease -management agreemee . agree upon a method of providing the required management of the facility. 5. Operating Expenses. The parties agree that the operating and mainte- nance expenses the swimming pool will be prorated depending upon the actual use of the facility. The terms and provisions related to allocation of operating expenses will be included in the lease -manage- ment agreement. The School District will agree in the lease -manage- ment agreement to a specified minimum level of usage and to a specified minimum percentage contribution to operating and maintenance expenses. 6. Reairs and Maintenance. The parties agree that the capital repair an ma n enance expenses for the swimming pool will be prorated on the same basis as operating and maintenance expenses. The terms and provisions relating to allocation of repairs and maintenance expenses will be included in the lease -management agreement. 7. Contingent on Approval. The eventual execution of a lease -management agreement as escr above will be contingent upon the City of Iowa City obtaining voter approval to issue bonds to fund its costs in the construction of the facility. The execution of a lease -management negotiationagreement ifurtherll be con n of uchagreementbythe parties,1eupon ufinalsapproval of the plans and specifications for the joint facility by the parties, and upon approval and execution of a contract for the construction of said facility by the City. Neither party is bound to execute a lease -management agreement or proceed with the project unless the above conditions and contingencies have been satisfied. 8. Cha tomer 2 Requirements. In addition to the above -listed items, the C a'h-ptg e28E T ase=management agreement will contain provisions re- quired by the Code of Iowa including specific provisions in regard to duration of the agreement, organization of any separate legal entity used to implement the agreement, a statement of purposes, and other related provisions. 070/7 . -3 9. Additional Provisions. The Chapter 28E lease -management agreement by an a ween the par es will contain provisions relating to liability and insurance for operation of the joint facility, and may contain numerous other provisions that may be negotiated by the parties to provide for the continued, harmonious use of the property. 10. Termination or Modification of Agreement. The Chapter 28E ease-managemen agreement. may a so provfffe Terms for terminating or modifying the agreement between the parties in case unforeseen circum- stances should occur. Such terms shall be reasonable and shall be mutually agreed upon by the parties. This Memorandum of Agreement is executed by the undersigned on the dates as indicated below: IOWA CITY FHUNITY SCHOOL DISTRICT "41 3/86 By: <i 0�• a e David L. LrOnln, superintendent CITY OF IOWA CITY, IOWA Wy 6, 1986 By: A4Z J)44 � ~c, a e—Kate Dickson �> ayor o�em By: 7.k. � e4;:^1 mares Karr, y Clerk i IlpMowd E d Vq"dM 1 ao1T DRAFT 7-31-86 28E Agreement Between The City of Iowa City and The Iowa City Community School District Providing for the Development, Ownership, Lease, Management and Operation of a Joint Swimming Pool Facility At Mercer Park Witnesseth: Whereas, the City of Iowa City (hereafter "the City") and the Iowa City Community School District (hereafter "the District") did, with the assistance of a Joint Swimming Pool Committee established by said bodies, undertake to study the feasibility and plan the development of a joint swimming pool facility to be located adjacent to Mercer Park and Southeast Junior High in Iowa City, Iowa; and Whereas, upon the recommendation of the Joint Swimming pool Committee, the City and the School District did enter into a Memorandum of Agreement, dated May 6, 1986, stating their intent to enter into an agreement pursuant to Chapter 28E of the Iowa Code, for the development, ownership, lease, manage- ment, and operation of a joint swimming pool facility adjacent to Mercer Park and Southeast Junior High in Iowa City, which Agreement is incorporated herein by reference; and Whereas, upon the recommendation of the Joint Swimming Pool Committee, the City Council of the City of Iowa City did call a special election upon the proposal to issue $3,715,000 of general obligation bonds to finance the renovation of the City Park Pool Facility and to finance the City's share of the construction of the joint swimming pool facility; and 2 Whereas, at said special election held on June 3, 1986, the electorate of Iowa City approved the issuance of general obligations bonds for said pur- poses; and Whereas the parties hereto desire to effectuate the will of the people as expressed in said election, and to that end have caused this Agreement to be prepared and executed. Now, Therefore, the City and the School District (hereafter "the parties") do hereby agree as follows: Part I - Joint Exercise of Powers Under Chapter 28E of the Code of Iowa. 1. Pursuant to Chapter 28E of the 1985 Code of Iowa, the parties do hereby agree that the purpose of this Agreement is to jointly exercise their respective powers to finance, develop, construct, own, operate and manage ' L, a public improvement, to wit, a swinning pool for the use of the public and for the use of public school students. 2. The parties hereby agree that this Agreement shall be effective upon its i i execution by both parties, and that the duration of this Agreement shall i be coterminous with the lease provisions hereof, Part III, which lease is for an initial term of ten years commencing as set forth in Part I11, paragraph 1, with guaranteed options for renewal of the lease provisions as provided in Part II1, Section 7 hereof. i i 3 3. The parties hereby agree that the City Manager of the City of Iowa City shall be designated as the administrator for purposes of this Agreement as provided by Section 28E.6 of the Code of Iowa, and that the City Manager shall administer the contracts for the design and construction of the joint facility, and shall administer the management and operation of the facility after completion of construction. 4. The City and the School District hereby agree that the development, construction, and equipping of the joint swimming pool facility shall be jointly financed by them as provided in Part II hereof, and that the operation and management of the facility shall be jointly funded by them as provided in Part III, Section 5 hereof. 5. The City and the School District hereby agree that the joint swimming pool facility shall be constructed and located upon the property described in Exhibit A hereto (hereafter "the property"), which is prop- erty owned by the School District as of the date of this Agreement. Upon approval of the Plans and Specifications for the joint swimming pool facility as provided in Part I1, Section 2 hereof, the School District shall convey said property to the City by Warranty Deed in the form attached hereto as Exhibit B. The parties further agree that School District's conveyance of the prop- erty described in Exhibit A, its contribution of funds for construction as provided in Part II, Section 6, and its ongoing payment of its share of the costs of operation and maintenance of the facility as provided in Part III, Section 5 shall constitute its consideration for the City's a7W a development and construction of the joint swimming pool facility and for its use of the facility during the initial lease term hereof, and during any renewal lease term as provided herein. Upon termination of this Agreement as provided in Part IV, Section 2, or non -renewal as provided in Part III, Section 7, the School District's interest in said facility, and its right to occupy and use same, shall cease. The City shall thereafter have unencumbered ownership and use of the facility provided, however, that in the event the City constructively abandons its use of the property for swimning pool purposes, the School District shall have the right to seek a writ of ejectmentand to re-enter and take possession thereof. Such right of entry shall not automatically accrue upon abandonment by the City. In the event the property reverts to the School District, the School District shall thereafter have respon- sibility to maintain the property and the facilities located thereon, or to demolish same, at its expense. Part II - Development and Construction of Joint Swimming Pool facility. 1. The parties hereby agree that the City will undertake to procure con- tracts for the design and construction o` the joint swimming pool facil- ity (hereafter "the facility"). The Plans and Specifications incorporating design of the facility will be in substantial conformance with the preliminary conceptual design prepared by Neumann Monson P.C., architectural consultants to the Joint Swimming Pool Committee, as set forth in the report of the Joint Swimmin; Pool Committee dated March 27, 1985, which report is incorporated hereir by reference. ao�� 1 I' 5 2. The parties further agree that upon submission of the Plans and Specifi- cations to the City by the project architect, the City will submit same to the School District for its review and approval. If the final design as reflected in the Plans and Specifications is in substantial confor- . mance with the preliminary conceptual design, or is otherwise acceptable - to the School District, the School District shall be required to approve same by resolution of its board. Upon approval of the Plans and Specifi- cations, the School District shall convey the property to the City. 3. The City agrees that, after it has by resolution approved the Plans and Specifications, form of contract, and estimate of project cost pursuant to 5384.102 of the Code of Iowa, and after the School District has con- veyed the property to the City, it will undertake to secure a bid or bids l' for construction of the joint swimming pool facility. The City shall f i have sole responsibility for the competitive bid procurement and contract award process, which process shall be conducted in conformance with Chapter 384 of the Code of Iowa. 4. The parties agree that the City will be bound to accept a bid or bids for construction of the facility and to award a contract or contracts for construction only if the low bid or bids received (1) will allow the joint swimming pool facility to be constructed as designed 4,)r an amount not exceeding the estimated cost thereof, $ , as approved by the City Council, (2) are from a responsible bidder or bidders acceptable to the City Council, and (3) are responsive, complete, and in satisfac- tory form. �oi7 5. The School District agrees to designate and appoint a project representa- tive to act on its behalf during the construction phase for purposes hereafter specified. 6. The School District agrees that upon the City's award of a contract or contracts for construction of the joint swimming pool facility, it shall be obligated to contribute to the City the sum of $500,000 as its share of the costs of construction of the facility. The said $500,000 contri- bution shall be paid to the City as follows: (a) $100,000 to be paid within 30 days of the City's award of the con- tract or contracts for construction. (b) Periodic progress payments, each payment to be due and payable within 15 days of the City's approval of each progress payment to the contractor(s), the amount of each such payment to be calculated as follows: [$400,000 o total construction cost as per construction contract(s)] x approved amount of each progress payment to contractor(s) = amount o` School District's periodic progress payment to the City. (c) A final payment as per the final accounting pursuant to paragraph 9 herein below. j, i l i' T " i F] The School District's project representative shall process all periodic progress payments on behalf of the School District. In the event the i School District does not remit periodic progress payments to the City within 15 days after the due date, the parties agree that the City shall thereafter be entitled to charge and collect interest on said unpaid amounts at the rate of 12% per annum until paid. II f 7. The parties agree that the School District contribution toward construc- tion of the facility shall be $500,000, plus interest, if any, as pro- vided in paragraph 6 above; provided, however, that in the event of the occurrence of unforeseeable or unpredictable events beyond the control of ,'• I the City, or in the event that the parties approve change orders in the jI project, which events or change orders increase the cost to construct the I' j facility over and above the amount(s) reflected in the construction contract(s) as awarded, then in either of these events the School Dis- trict shall share in said increased costs in at least the same proportion as its $500,000 contribution bears to the total construction cost as reflected in the construction contract(s) as awarded. All change orders i i to delete or add items shall be submitted to the School Districts desig- nated project representative, who shall be empowered to approve or disap- prove same. The School District's project representative shall approve ' or disapprove proposed change orders submitted by the City in writing j.,. within three working days of their submission. If the School District's project representative fails to respond within said seven day period, the School District shall be deemed to have approved the change order. j j I i I _ t'c P 8. In the event that the facility is constructed for an amount less than that shown in the construction contract(s) as awarded, the School Dis- trict shall nonetheless be obligated to make a principal contribution of not less than $500,000 toward the cost of construction of the joint swimming pool facility. If after making the final periodic progress payment as provided in paragraph 6(b) above, the School District's prin- cipal contribution stands at less than $500,000, the remainder thereof shall be assessed to the School District in the City's final accounting and shall be paid as part of the School District's final payment. 9. Within 90 days after the City's final acceptance of the work on the joint swimming pool facility, or within 30 days after final payment to the construction contractor(s), whichever occurs later, the City shall make a final accounting of all expenses which it has incurred under the con- tracts) for the construction of the facility. Said accounting shall show (a) all progress payments made to the contractor(s); (b) all peri- odic progress payments made to the City by the School District; (c) the principal amounts of any such periodic progress payments remaining un- paid, plus interest thereon to the date of the accounting; (d) all in- creases in the cost of construction, whether due to approved change order or unforeseen circumstances; (e) the portion of said increased construc- tion costs which are payable by the School District; and (f) the portion o said increased construction costs which are payable by the City. In the event the facility is constructed for an amount less than that shown in the construction contract(s) as awarded, the accounting shall also show the amount remaining to be paid by the School District to bring its principal contribution to the project to $500,000. al 9 I I i All amounts due the City as of the date of the final accounting, plus interest thereon if applicable, shall be combined in a single final payment figure and shown on the final accounting. 10. The parties agree that the School District's final payment, as per para- graphs 6(c) and 9 above, shall be due and payable within 14 days after 1 the City's submission of the final accounting to the School District. In the event that the School District does not remit final payment on or before the due date, the parties agree that the City shall be entitled to charge and collect interest thereafter on the amount unpaid at the rate of 12t per annum, t I L' 11, If the amount of the final payment tendered by the School District is acceptable to the City, the City shall accept same by resolution, which acceptance shall be made within 30 days of the School District's tender thereof. If the City does not take action to either accept or reject said final payment, it shall be deemed to have been accepted by the City L„ on ant as of the 31st day following tender. Part II1. Lease, Management and Operation of Joint Swimming Pool Facility. 1. Premises and Term, The City, in consideration of the School District's conveyance of the property to the City, its contribution of $500,000 toward the cost of construction of the joint swimming pool facility, and its ongoing commit- o?0 /7 ID ment contained herein to pay as rental a percentage contribution toward the expense of operating and maintaining the facility, does hereby lease the joint swimming pool facility to the School District for the use and benefit of the public school students in Iowa City. This lease, and the School District's right to occupy and use the facil- ity as provided herein, shall commence at midnight on the day that the City accepts, or is deemed to have accepted, final payment of the School District's share of construction costs, as provided in Part II, Section 11, and shall terminate at midnight on said date ten years hence, unless terminated earlier or renewed pursuant to further provisions hereof. 2. Possession and Use of Premises. The parties agree that the School District's right to occupy and use the leased premises is not exclusive, it being the intent of the parties that the pool itself is to be shared and jointly used by the public and by public school students pursuant to a "Pool Use Schedule" to be jointly developed and periodically updated by City and School District represen- tatives as hereinafter provided. The leased premises shall also include the office, locker room and storage spaces tentatively identified in Exhibit B hereto. The office area so identified shall be reserved for the exclusive use of the School District during the term of this lease. The locker room and storage space so identified shall be reserved for shared or exclusive use by the School District during those times when the School District is using the pool, as per the Pool Use Schedule. .7001% F_ 11 3. Pool Uze Schedule and Hours of Operation. The pe -ties agree that their respective representatives shall develop a "Poo'. Use Schedule" prior to the commencement of the term of this lease. The P:.:)l Use Schedule shall be updated by June 1 of each year for the next =fiscal year beginning July 1. The Pool Use Schedule shall identify the hours during which the pool, or any portion thereof, is to be used by j the S:000l District or by the City. For purposes of this provision, any i use e` the pool or locker rooms, or a portion thereof, which is exclu- sive;., , for the benefit of public school students or public school person- mel o- instructors, or which is Conducted under the auspices, supervision or co"Vol of School District personnel, shall be considered to be use of the fscility by the School District. Competitive events between Iowa City -)ublic school students and students of other school systems shall be consi Bred School District use. All other uses of the pool shall be consi:=_red to be City use of the pool. The parties agree that their i representatives may amend or adjust the Pool Use Schedule frau time to time es program needs and exigencies require. In t':se instances where the pool will be used simultaneously by the City y anc .te School District, the Pool Use Schedule shall indicate the per- j cen;e;e of pool area to be used by each for purposes of apportioning cos:: of operation and maintenance. The pool facility shall be available for :se by the School District for a period of not less than 30% of its tots' annual operating hours. School District use of the facility in excess of this percentage shall be by mutual agreement of the parties as refle:ted in the Pool Use Schedule. _..__ .7017 irr d I The parties agree that the City shall keep and maintain records of actual pool usage by each party, for all usage during, as well as outside of, normal operating hours. The City shall provide such records to the School District on a monthly basis. Said records shall be deemed ap- proved by the School District if not objected to within ten days of receipt. The parties further agree that in the first fiscal year of operation, the normal hours of operation for the pool shall be from 6:00 a.m. to 9:00 p.m, each day, Monday through Friday, 10:00 a.m, to 8:00 p.m. on Satur- day, and 1:00 p.m. to 8:00 p.m, on Sunday. The use of any portion of the facility by the City or by the School District outside of said normal hours of operation shall be deemed to be exclusive use by that party, unless its use is shared by the parties during such times. The City may provide, but shall not be required to provide, general supervisory or custodial services during exclusive School District use of the facility when such use occurs outside of the normal operating hours. 4. Operation and Maintenance. The City shall have the responsibility and the exclusive authority for the operation and maintenance of the joint swimming pool facility. The City shall have responsibility to properly operate and maintain the facility, including the building, grounds, and equipment, shall have responsibility to provide general supervision of the entire facility 13 during normal operating hours, and shall have responsibility to provide lifeguards to supervise the public use of the pool during periods of exclusive City use or shared use with the School District. The operation of the facility shall be under the general administration and supervision of the City Manager of the City of Iowa City, who may delegate responsibility for the day to day operation of the facility to the City Director of Parks and Recreation, or such other individual as the City Manager may from time to time designate. The School District shall have the responsibility to provide appropriate personnel to supervise use of the pool by its students and staff during periods of exclusive School District use or shared use with the City. 5. Budget and Cost Sharing. On or before January 15 of each year, the City shall cause to be prepared a preliminary fiscal year line item budget for the operation and mainte- nance of the joint swimming pool facility for the next succeeding fiscal year, and shall cause said budget to be submitted to the School District for its consideration in the preparation of its budget for the next succeeding fiscal year. The final budget for the facility as approved by the City Council shall be submitted to the School District on or before March 1. The City will consult with the School District regarding any changes between the preliminary and final budget for the facility. F 14 Said budget shall reflect estimated expenses for operation and mainte- nance of the facility in the expense categories shown on the proposed First Year Budget for the facility, Exhibit C hereto. The parties do hereby agree to annually budget and contribute monies during the term of this Agreement to defray the expense of operating and maintaining the joint swimming pool facility. The parties further agree that the City shall have responsibility to budget for and pay all costs and expenses associated with operation and maintenance of the facility as they accrue, and to act as comptroller in that regard. The School Dis- trict hereby agrees, for so long as it shall retain the right to occupy and use the facility under this lease, to contribute monies to the City to assist in defraying the City's costs and expenses in operating and maintaining the facility, which contribution shall be considered to be rental and to constitute consideration for its continued use and occu- pancy of the facility, The School District agrees that it shall be obligated to contribute annually during each fiscal year, as its share of said expenses, an amount equal to 30% of the cost share items identified in the adopted budget for the facility, or a percentage contribution to those cost share items equal to its actual annual percentage of pool usage, whichever is greater. For purposes of this provision, (a) cost share items shall mean those cost and expense items from the fiscal year budget for the facility which the parties have agreed to share, which cost share items are identified in Exhibit C hereto; and (b) the actual annual percentages of pool usage shall be calculated as shown in Exhibit D hereto, i 15 The School District does further agree to pay its annual fiscal year contribution in 12 equal monthly payments, each monthly payment equal to 1/12 of 30% of the cost share items identified in the adopted budget for the facility for that fiscal year, plus a final payment for that year as calculated and set forth in a reconciliation report as hereafter pro- vided. Each monthly payment shall be made in advance, on or before the I _ 20th day of the preceding month. During the first fiscal year of pool use pursuant to this Part III, the respective cost shares of the parties, and the School District's monthly payments shall be calculated on the basis of the Proposed First Year Budget, Exhibit C hereto. j r; f' The School District's first monthly payment shall be paid in advance and I' shall accompany the School District's final payment of its contribution to the cost of construction, as per Part II, Section 10 hereof. j The City agrees that at the close of each fiscal year it will prepare a reconciliation report and' that it will forward said report to the School District on or before August 31 of each year. Said report shall reflect j, actual costs and expenses for all budgeted line items in the budget for I' the facility for the preceding fiscal year, actual costs and expenses for cost share items in said budget, as well as unbudgeted costs incurred. Said report shall also set forth the City's and the School District's actual hours of pool usage for the preceding fiscal year, based on pool use records kept by the City. 40/7 i _ 'I I 15 The School District does further agree to pay its annual fiscal year contribution in 12 equal monthly payments, each monthly payment equal to 1/12 of 30% of the cost share items identified in the adopted budget for the facility for that fiscal year, plus a final payment for that year as calculated and set forth in a reconciliation report as hereafter pro- vided. Each monthly payment shall be made in advance, on or before the I _ 20th day of the preceding month. During the first fiscal year of pool use pursuant to this Part III, the respective cost shares of the parties, and the School District's monthly payments shall be calculated on the basis of the Proposed First Year Budget, Exhibit C hereto. j r; f' The School District's first monthly payment shall be paid in advance and I' shall accompany the School District's final payment of its contribution to the cost of construction, as per Part II, Section 10 hereof. j The City agrees that at the close of each fiscal year it will prepare a reconciliation report and' that it will forward said report to the School District on or before August 31 of each year. Said report shall reflect j, actual costs and expenses for all budgeted line items in the budget for I' the facility for the preceding fiscal year, actual costs and expenses for cost share items in said budget, as well as unbudgeted costs incurred. Said report shall also set forth the City's and the School District's actual hours of pool usage for the preceding fiscal year, based on pool use records kept by the City. 40/7 f: .: F 16 The reconciliation report shall set forth the calculation of each party's percentage of pool usage for the preceding fiscal year, which percentages shall be calculated by dividing each party's actual hours of usage for that year by the total hours of usage by both parties combined during that year. Total hours of usage shall include hours of usage by the parties outside of normal operating hours. The reconciliation report shall also set forth the calculation of the School District's final payment, which figure shall be calculated by applying the School District's actual annual percentage of pool usage for that fiscal year to the actual costs and expenditures for cost share items for that year, as reflected in said report, less the total amount of School District monthly payments already paid for that year. Unbudgeted cost items, including the cost to repair or replace casualty loss items due to vandalism, storm, fire, flood, theft, etc., which are not covered in whole or in part by insurance, shall be shown in the reconciliation report. The parties shall, unless otherwise agreed, share the cost of unbudgeted cost items in the same ratio as other cost share items as reflected in the reconciliation report. In the event that the City's actual expenses for cost share items for operation and maintenance of the joint pool facility are less than what was budgeted, and if, after applying the School District's actual annual use percentage to said actual expenses for cost share items, it is deter- mined that the School District has paid monthly payments for said fiscal 1 I i v year which total in excess of the amount it should have paid, then in that event said overpayment shall be reflected in the reconciliation report as a refund payment to the School District. The School District shall either approve or object to said reconciliation report within 14 days of receipt thereof. Said report shall be deemed to be approved by the School District if not objected to within said 14 -day period. The parties agree that the School District's final payment, or the City's refund payment, as set forth in the reconciliation report, shall be due and payable within 14 days after the School District's approval of the reconciliation report. In the event that the School District does not remit final payment, or the City does not remit refund payment, on or before the due date, the parties agree that the other party shall be j entitled to charge aid collect interest on the amount unpaid at the rate of 121k per annum. Ai 6. Assignment and Sublease Prohibited. i The School District's leasehold interest in the joint pool facility, including its right to occupy and use the facility, shall not be j assignable to any person or entity for any purpose, nor shall the School aa17 District sublease its right to use and occupy the facility even if only temporarily. The School District shall not charge a fee to any person, group, or entity using the facility under its auspices, except for entry fees for participants in competitive swim events sponsored or hosted by the School District, and except for entry fees to cover costs of supervi- sion for School District sponsored parties for students and/or faculty. 7. Renewal. The parties agree that the School District shall have the option to renew its lease of the pool facility for additional periods of years each upon the same terms and conditions as provided herein, pro- vided that the School District is not in default of any of the provisions of the lease at the time that renewal is to be effective. The School District may exercise its right to renewal by giving notice thereof to the City. Such notice shall be in writing and shall be given by sending same to the City Manager at least 90 days prior to the date upon which the initial term of the lease, or any renewal term, is to expire. Part 1V - General Provisions. 1. Declaration of Default and Notice. In the event that either party determines that the other has defaulted in the performance of its obligations hereunder, the aggrieved party may declare that default has occurred and give notice thereof to the defaulting party. Notice of default shall be given in writing, shall 19 I specify the nature of the default and the provision of the Agreement involved, and shall specify what action is required of the defaulting party to correct the default. The defaulting party shall have 30 days from the date of its receipt of the notice of default to correct the default. If at the end of said 30 -day period the default has not, in the opinion of the aggrieved party, been corrected, that party may thereupon pursue its remedies as provided in paragraph 2 hereof. 2. Remedies Upon Default. In the event of default by the School District in its obligation to make contributions to the costs of construction of the joint pool facility, as provided in Part II, paragraphs 6 and 9 hereof, or to make contributions to the costs of operating and maintaining the joint pool facility, as provided in Part III, paragraph 5 hereof, or a default by the School District in the performance of any material provision of this Agreement, the City may, at its option, after declaring default and giving notice thereof, seek termination of this Agreement or specific performance of its provisions. Unless this Agreement is terminated by agreement of the parties or pursu- ant to Court decree, the School District shall have the obligation to make contributions to the costs of operating and maintaining the joint Pool facility during the entire term of this Agreement, regardless whether or not the School District continues to occupy and use the facil- ity during the entire term, and the City shall be entitled to specific performance to enforce this provision. 017 20 In the event of default by the City in its obligation to operate and maintain the joint pool facility as provided in Part III hereof, the School District may, at its option, after declaring default and giving notice thereof, seek termination of this Agreement or specific perform- ance of its provisions. i_ In order to obtain termination of this Agreement or specific performance i Of its provisions, the party seeking such relief shall, after expiration i of the 30 -day period following receipt of notice of default, commence a cause of action for such relief in Iowa District Court in and for Johnson County. The petitioning party may seek termination and specific perform- ance as alternative forms of relief in the same cause of action, Nothing � in this agreement shall be construed to require the petitioning party to i elect its remedy at the time suit is filed, and the petitioning party shall, to the extent permitted by the Court, be allowed to amend its petition to seek other relief, or to seek alternative forms of relief. I , 3. Effect of Termination. - In the event that this lease is terminated as provided in paragraph 2 1 above, the School District's right to occupy and use the joint facility shall cease. The City shall thereafter have unencumbered ownership and use of the facility, subject only to the School District's right of entry as provided in Part I, paragraph 5. 21 4. Indemnity and Hold Harmless. The School District hereby agrees to indemnify, defend, and hold harmless the City, its officers, agents, and employees, against any and all claims, suits, actions, debts, damages, costs, charges and expenses, including court costs and attorney's fees, and against all liability for property damage and personal injury, including death resulting directly or indirectly therefrom, arising from any act of negligence of the School District, either active or passive, or those of its agents, employees, assigns, or any other person acting on its behalf in supervising use of the joint pool facility and accompanying property by School District students, staff, personnel, or invitees pursuant to the terms of, and for the purposes specified in, this Agreement, or arising from School Dis- trict supervision of any other use of the premises by the School Dis- trict, its agents, employees, assigns, or any other person acting on its behalf, or arising from the School District's supervision of any other activity which the School District sponsors, suffers or allows to occur on the property. The City hereby agrees to indemnify, defend, and hold harmless the School District, its officers, agents, and employees, against any and all claims, suits, actions, debts, damages, costs, charges and expenses, inclu:ing court costs and attorney's fees, and against all liability for property damage and personal injury, including death resulting directly or indirectly therefrom, arising from any act of negligence of the City, eithe- active or passive, or those of its agents, employees, assigns, or or 22 any other person acting on its behalf in the design, construction, opera- tion, maintenance, or general supervision of public use of the joint pool facility and accompanying property pursuant to the terms of, and for the purposes specified in, this Agreement, or arising from any other use of the premises by the City, its agents, employees, assigns or any other person acting on its behalf, or arising from any other activity which the City sponsors, suffers or allows to occur on the property. moo/ 7 .. —7 i do Exhibit A Legal Description of Property to be Conveyed by Iowa City Coirmunity j School District to City of Iowa City in Connection with the Joint Swirtr.ing Pool Project. I e 11..111.nn( q ON nrc, cN4m. fl I' I* Oro w 14.91, Na. I1, ON rxr „NOUN„ nooN Lti1 f4 '•r JOINT USE SWIMMING POOL IOWA CITY, IC 1 ri,n PnnN 1 I 1 , �t I 1 1 I 11..111.nn( q ON nrc, cN4m. fl I' I* Oro w 14.91, Na. I1, ON rxr „NOUN„ nooN Lti1 f4 '•r JOINT USE SWIMMING POOL IOWA CITY, IC 1 ri,n PnnN 1 I 1 , �t I 1 1 err. Exhibit C Proposed First Year Budget Joint Swimming Pool Facility Budget Code Full -Time Personnel (including FICA, IPERS Numbers and insurance benefits): 6100 {*Supervisor (45% assigned to this facility) - $13,178 + 5% ---- $13,837* 6300 { 6400 {*Maintenance Worker - $19,463 + 5% ---- $20,436* 6500 { Part-Time/Temporary_ Personnel Social Wages Security IPERS Inflation Total 6100 {*Maintenance Workers $ 7,280 $ 521 $ 42 $ 392 ----- $ 8,235* 6300 {*Cashiers Super- $17,472 $1,249 $100 $ 941 ----- $19,762* ' visors, etc. $56,544 $ 323 ----- $ 6,792 6400 { Lifeguards $49,990 $3,574 $287 6500 { Instructors $ 6,005 $ 429 $ 35 { Aides $ 3,755 $ 268 $ 22 { Managers $ 8,148 $ 583 $ 47 Building Operating Costs (based on averages): 0* 8100 11 $2,693 ----- $56,544 $ 323 ----- $ 6,792 $ 202 ----- $ 4,247 $ 439 ----- $ 9,217 7100 *Office Supplies } Misce aneous } Supplies S 1,300 + 5% -------- $ 1,365* 7200 *Operating Supplies J Pool Chemicals and Supplies $ 2,650 + 5% -------- $ 2,783* 7300 *Repair and Maintenance Supplies -------- $ 0* 8100 *Administrative Services -------- $ 0 (Bookkeeping, Accounting, Data processing) 8200 *Communications (telephone, postage) $ 950 + 5% -------- $ 997* {*Property Insurance (fire & casualty) $ 3,100 + 5% -------- $ 3,255* 8400 {*Liability Insurance $12,877 + 5% -------- $13,521* 8500 *Public Utility Services Gas and Electric $54,300 + 5% -------- $57,015* Water and Sewer S 3,325 + 5% -------- $ 3,491* 8600 *Building Repair & Maintenance S 2,600 + 5% -------- $ 2,730* ---------------------------------------- *Indicates those items for which the School District will share costs (Cost -Share-Items) ----- ---- --- ----- --- -- - - --- -- - - - - Total dollar value all cost share items: $147,427.00 School District Estimated Share (30%): x .3 Schoo Dis ric Esti�e�Annual Cori ution: 44,228.10 12 School District Monthly Payment: $ 3,6F578 8 01017 I' i i � I J 1 , i L I ---------------------------------------- *Indicates those items for which the School District will share costs (Cost -Share-Items) ----- ---- --- ----- --- -- - - --- -- - - - - Total dollar value all cost share items: $147,427.00 School District Estimated Share (30%): x .3 Schoo Dis ric Esti�e�Annual Cori ution: 44,228.10 12 School District Monthly Payment: $ 3,6F578 8 01017 I' � II` i Exhibit D Formula for Determining Actual Annual Percentages of Use 1. Hours and Percentage of Use Each School Day: Sept 1 -May 31. Shared 8 Exclusive Hours of Use Each Day as Per Pool Use Schedule or Actual Use Records School nistrirt uca r;*., o:uu-y:uu = 9:00-12:00 s = 3 nrs, hrs, z= x 50% = 1.50 ills. hrs. x 5a = 50% ./b hrs. 12:00-1:00 = 1 hr. x 0% = 0.00 hrs. x x = 100% 1.50 = 1.00 hrs. hrs. 1:00-6:00 = 5 hrs. x 50% = 2.50 hrs. x 50% = 2.50 hrs. 6:00-9:00� = 3 hrs. x 100% = 3.00 hrs. 15 hrs./day 6.25 hrs./day Percentage of Use Per School Day School District: 6.25/15 = 41,66% City: 8.75/15 - 58.33% 2. Total Hours of Operation Each Week. Monday -Friday: 5 days at 15 hrs./day = 75 hrs. Saturday = 10 hrs. Sunday = 7 hrs. y2 Trs./week 8.75 hrs./day 3. Total Hours of Operation Each Year. Total hours of operation each year shall be the total hours per fiscal year that the pool is actually available for use, and shall not include down time for pool repair or maintenance or recognized City holidays when the Pool is closed. It is assumed that the pool will be unavailable for use for these reasons for at least one week each year. 92 hours/week x 51 weeks = 4692 hours 4. Total Hours of School District Use Each Year. (based on Pool Use Schedule showing an assumed 180 days of use each year by School District) 180 days* x 6.25 hrs,/day* = 1125 hours* Usage on weekends and non -school days 283 hours rQTT6­urs7y_e_ar *Number of days of use each year, number of hours of use each day and number of hours of use each year may vary, Actual figures to be established by reference to Pool Use Records. 5. Total Hours of City Use Each Year. 4692 hours - 1408 hrs. of School District use = 3284 hrs./year 6. Respective Annual Percentages of Pool Use. a. School District 1408 hrs./4692 hrs. = 30% Respective Cost Allocation b. City Percentages Based on Use 3284 hrs./4692 hrs. = 70% 40/7 -I WARRANTY DEED i KNOW ALL MEN BY THESE PRESENTS: That the Iowa City Community School District, Grantor herein, in consideration of the mutual covenants and agreements contained in a certain written Agreement found of record at Book , page of the records of the Johnson County, Iowa, Recorder's Office oa es hereby Convey unto the City of Iowa City, Iowa, the follow- ing described real estate, situated in Johnson County, Iowa, to -wit: There is hereby reserved to the Grantor a right of entry, pursuant to which the Grantor may, upon Grantee's abandonment of the use of the property for public swimming pool purposes for a period in excess of 'six months, seek writ of ejectment and upon issuance thereof enter and take possession of, and acquire title to, the property. And the grantor does do Hereby Covenant with the said grantee, and successors in interest, that said grantor holds said real estate by title in fee simple; that it has good and lawful authority to sell and convey the same; that said premises are Free and Clear of all Liens and Encumbrances Whatsoever except as may be above stated; and said grantor Covenants to Warrant and Defend the said premises against the lawful claims of all persons whomsoever, except as may be above stated. Words and phrases herein including acknowledgement hereof shall be construed as in the singular or plural number, and as masculine or feminine gender, according to the context. Signed this day of Ig Gran or T s TAW -es T CITY'S ALTERNATE PROPOSAL ON INDEMNITY AND HOLD HARMLESS -7 X17crha Ile 40/0-541/ 04 ��e�nai 9�!fo��fi rni% � farm 4. Indemnity and Hold Harmless. I A. The School District hereby agrees to indemnify, defend, and hold harmless the City, its officers, agents, and employees, against any and all claims, suits, actions, debts, damages, costs, charges and expenses, including court costs and attorney's fees, and against all liability for property damage and personal injury, including death resulting directly or indirectly therefrom, arising from any neali- gent act or omission of the School District, or of its officers, agents, employees, assigns, or any other person acting on its behalf, /in supervising use of the joint pool facility and accompanying prop- erty by anyone attending or participating in School District spon- sored events or activities at the J int pool facility, pursuant to the terms of and for the purposes specified in, this Agreement, or arising from School District supervision of any other use of the premises by the School District, its agents, employees, assigns, or any other person acting on its behalf, or arising from the School District's supervision of any other activity which the School Dis- trict sponsors, suffers or allows to occur on the property. B. In lieu of sharing in the City's cost of insuring its liability with regard tc L ; Hesign or construction of, or its performance of main- tenance, operation, and supervision duties with respect to, the joint facility, the School District agrees (1) to indemnify, defend, and j tJ of{crrs, �9r.r�s,iMdewr/eje�s hold the City,Aharmless from and against any and all claims, suits, actions, debts, damages, costs, charges and expenses, including court costs and attorneys fees, and against all liability for property I 2 damage and personal injury, including death resulting directly or indirectly therefrom, which may in the future be brought or asserted i Y Y 9 i i against the City, its officers, agents or employees, which arise out of any negligent act or omission of the City, or of its officers, agents, employees, assigns or any other person acting on its behalf, li in the design, construction, maintenance, operation or supervision of the joint pool facility and accompanying property, which causes I j injury or damage to anyone attending or participating in School I District sponsored events or activities at the joint pool facility, and (2) to waive and release any and all claims, suits, actions iwel✓dl.p esrrteostsi+d�y/�+�ryaff, debts, damages, costs, charges, and expenses which the School Dis- trict may in the future have or be entitled to bring or assert against the City, including subrogation rights which the School District or its insurers may have or hereafter acquire, against the City, its officers, agents or employees, which arise out of any negligent act or omission of the City, or of its officers, agents, employees, assigns or any other person acting on its behalf, in the design, construction, maintenance, operation, or supervision of the joint pool facility and accompanying property which causes injury or damage to anyone attending or participating in School District spon sored events or activities at the joint pool facility. C. In the event that the School District should in the future decide to share in the City's cost of insuring its liability with respect to the joint pool facility, and the parties execute an addendum to this Agreement to that effect, then in that event the City hereby agrees that it will indemnify, defend, and hold harmless the School Dis- I I i � oZo1% trict, its officers, agents, and employees, against any and all claims, suits, actions, debts, damages, costs, charges and expenses, including court costs and attorney's fees, and against all liability for property damage and personal injury, including death resulting directly or indirectly therefrom, arising from any nsglige t y_r anison of t e City, or of its officers, agents, employees, assigns, _ or any other person acting on its behalf -in the.design, construction, operation, maintenance, or,supervision,,of the joint pool facility and I. accompanying property pursuant to the terms of, and for the purposes specified in, this Agreement, or arising from any other use of the I premises by the City, its agents, employees, assigns or any other person acting on its behalf, or arising from any other activity which the City sponsors, suffers or allows to occur on the property. i 1 �? I j •` I 1 i SCHOOL DISTRICT'S REDRAFT CHAPTER 2BE AGREEMENT 0 I i I f� i . I i 28E AGREEMENT BETWEEN THE CITY OF IOWA CITY AND THE IOWA CITY COMMUNITY SCHOOL DISTRICT PROVIDING FOR THE DEVELOPMENT, OWNERSHIP, LEASE, MANAGEMENT AND OPERATION OF A JOINT SWIMMING POOL FACILITY AT MERCER PARK W I T N E S S E T H: WHEREAS, the City of Iowa City (hereafter "the City") and the Iowa City Community School District (hereafter "the Dis- trict") did, with the assistance of a Joint Swimming Pool Com- mittee established by said bodies, undertake to study the fea- sibility and plan the development of a joint swimming pool fa- cility to be located adjacent to Mercer Park and Southeast Ju- nior High in Iowa City, Iowa; and WHEREAS, upon the recommendation of the Joint Swimming Pool Committee, the City and the School District did enter into a Memorandum of Agreement, dated May 6, 1986, stating their intent to enter into an agreement pursuant to Chapter 28E of the Iowa Code, for the development, ownership, lease, manage- ment, and operation of a joint swimming pool facility adjacent to Mercer Park and Southeast Junior High in Iowa City, which Agreement is incorporated herein by reference; and WHEREAS, upon the recommendation of the Joint Swimming Pool Committee, the City Council of the City of Iowa City did call a special election upon the proposal to issue $3,715,000 of general obligation bonds to finance the renovation of the City Park Pool Facility and to finance the City's share of the construction of the joint swimming pool facility; and WHEREAS, at said special election held on June 3, 1986, the electorate of Iowa City approved the issuance of general obligation bonds for said purposes; and WHEREAS, the parties hereto desire to effectuate the will of the people as expressed in said election, and to that end have caused this Agreement to be prepared and executed. NOW, THEREFORE, the City and the School District (hereaf- ter "the parties") do hereby agree as follows: PART I. JOINT EXERCISE OF POWERS UNDER CHAPTER 28E OF THE CODE OF IOWA. 1. Pursuant to Chapter 28E of the 1985 Code of Iowa, the parties do hereby agree that the purpose of this Agreement is AP/7 -2- to jointly exercise their respective powers to finance, devel- op, construct, own, operate and manage a public improvement, to -wit: A swimming pool for the use of the public and for the use of public school students. 2. The parties hereby agree that this Agreement shall be effective upon its execution by both parties, and that the du- ration of this Agreement shall be coterminous with the lease provisions hereof, Part III, which lease is for an initial term of ten (10) years commencing as set forth in Part III, para- graph 1, with guaranteed options for renewal of the lease pro- visions as provided in Part IIi, Section 7 hereof. 3. The parties hereby agree that the City Manager of the City of Iowa City shall be designated as the administrator for purposes of this Agreement as provided in Section 28E.6 of the Code of Iowa, and that the City Manager shall administer the contracts for the design and construction of the ioint facili- ty, and shall administer the management and operation of the facility after completion of construction. 4. The City and the School District hereby agree that the development, construction and equipping of the joint swim- ming pool facility shall be jointly financed by them as provid- ed in Part II hereof, and that the operation and management of the facility shall be jointly funded by them as provided in Part III, Section 5 hereof. 5. The City and the School District hereby agree that the joint swimming pool facility shall be constructed and located upon property now owned by the School District. The School District will donate to the City a reasonable, sufficient amount of land lying east of Southeast Junior High and immedi- ately adjacent to Mercer Park so that the joint swimming pool facility will be entirely located on City property. The City will survey the property and submit a legal description and site plan to the School District. Upon approval of the plans and specifications and the site plan and legal description for the joint swimming pool facility as provided in Part II, Sec- tion 2 hereof, the School District shall convey said property to the City by Warranty Deed. The parties further agree that School District's convey- ance of the property, its contribution of funds for con- struction as provided in Part II, Section 6, and its ongoing payment of its share of the costs of operation and maintenance of the faci:ity as provided in Part III, Section 5 shall con- stitute its consideration for the City's development and con- struction of the joint swimming pool facility and for its use 40/7 -3 - of the facility during the initial lease term hereof, and dur- ing any renewal lease term as provided herein. � Upon termination of this Agreement as provided in Part IV, Section 2, or non -renewal as provided in Part III, Section 7, the School District's interest in said facility, and its right to occupy and use same, shall cease. The City shall thereafter I have unencumbered ownership and use of the facility provided, however, that in the event the City constructively abandons its use of the property for swimming pool purposes, the School Dis- trict shall have the right to seek a writ of ejectment and to re-enter and take possession thereof. Such right of entry shall not automatically accrue upon abandonment of the City. In the event the property reverts to the School District, the School District shall thereafter have responsibility to main- tain the property and the facilities located thereon, or to demolish same, at its expense. These reversionary rights will be stated in the Warranty Deed to be given by the School Dis- trict to the City. PART II DEVELOPMENT AND CONSTRUCTION OF JOINT SWIMMING i POOL FACILITY. 1. The parties hereby agree that the City will undertake to procure contracts for the design and construction of the joint swimming pool facility (hereafter "the facility"). The plans and specifications incorporating design of the facility will be in substantial conformance with the preliminary concep- tual design prepared by Neumann Monson P.C., architectural con- sultants to the Joint Swimming Pool Committee, as set forth in the report of the Joint Swimming Pool Committee dated March 27, 1986, which report is incorporated herein by reference. 2. The parties further agree that upon submission of the plans and specifications to the City by the project architect, the City will submit same to the School District for its review and approval. If the final design as reflected in the plans and specifications is in substantial conformance with the pre- liminary conceptual design, or is otherwise acceptable to the School District, the School District shall be required to ap- prove same by motion.of its Board. Upon approval of the plans and specifications and site plan and legal description, the School District shall convey the property to the City. 3. The City agrees that, after it has by resolution ap- proved the plans and specifications, form of contract, and es- timate cf project cost pursuant to g389.iCs of the Code of Iowa, and after the School District has conveyed the property to the City, it will undertake to secure a bid or bids for A0/7 -4 - construction of the joint swimming pool facility. The City shall have sole responsibility for the competitive bid procure- ment and contract award process, which process shall be con- ducted in conformance with Chapter 384 of the Code of Iowa. 4. The parties agree that the City will be bound to ac- cept a bid or bids for construction of the facility and to award a contract or contracts for construction only if the low bid or bids received (1) will allow the joint swimming pool facility to be constructed as designed for an amount not ex- ceeding the estimated cost thereof as approved by the City Council, (2) are from a responsible bidder or bidders accept- able to the City Council, and (3) are responsive, complete, and in satisfactory form. 5. The School District agrees to designate and appoint a project representative to act on its behalf during the con- struction phase for purposes hereafter specified. 6. The School District agrees that upon the City's award of a contract or contracts for construction of the joint swim- ming pool facility, it shall be obligated to contribute to the City the sum of $500,000.00 as its share of the costs of con- struction of the facility. The said $500,000.00 contribution shall be paid to the City in periodic progress payments, each payment to be due and payable within thirty (30) days of the City's approval of each progress payment to the construction contractor(s), the amount of each such payment to be calculated as follows: ($500,000.00 divided by total construction cost as per con- struction contract(s)) x approved amount of each progress pay- ment to contractor(s) = amount of School District's period pro- gress payment to the City. The School District's payments shall not exceed a total of $500,000.00. PART III. LEASE, MANAGEMENT AND OPERATION OF JOINT 1. Premises and Term. The City, in consideration of the School District's conveyance of the property to the City, its contribution of $500,000.00 toward the cost of construction of the joint swimming poolfacility, and its onc_oing commitment contained herein to pay as rental a share of the expenses o= operating and maintaining the facility, does hereby lease the APO 1. . -s- joint swimming pool facility to the School District for the use and benefit of the public school students in Iowa City. This lease, and the School District's right to occupy and use the facility as provided herein, shall commence at midnight on the day that the City accepts the project from the general contractor and accepts the final payment of the School Dis- trict's share of construction costs, and shall terminate at midnight on said date ten years hence, unless terminated earli- er or renewed pursuant to further provisions hereof. 2 Possession and Use of Premises. The parties agree that the School District's right to occupy and use the leased premises is not exclusive, it being the intent of the parties that the pool itself is to be shared and jointly used by the public and by public school students pursuant to a "Pool Use Schedule" to be jointly developed and periodically updated by the City and School District representatives as hereinafter provided. The leased premises shall also include an office and storage space identified and reserved for the exclusive use of the School District during the term of this lease. In addi- tion, two locker rooms shall be reserved for exclusive use by the school District during those hours of School District use. 3. Pool Use Schedule and Hours of Operation. The parties agree that their respective representatives shall de- velop a "Pool Use Schedule" prior to the commencement of the term of this lease. The Pool Use Schedule shall be updated by June 1 of each year for the next fiscal year beginning July 1. The Pool Use Schedule shall identify the hours during which the pool, or any portion thereof, is to be used by the School Dis- trict or by the City. For purposes of this provision, any use of the pool or 'locker rooms, or a portion thereof, which is exclusively for the benefit of public school students or public school personnel or instructors, or which is conducted under the auspices, supervision or control of School District person- nel, shall be considered to be use of the facility by the School District. Competitive events between Iowa City public school students and students of other school systems shall be considered School District use. All other usesof the pool shall be considered to be City use of the pool. The parties agree that their representatives may amend or adjust the Pool Use Schedule from time to time as program needs and exigencies require. In those instances where the pool will be used simulta- neously by the C'ty and the School District, the Poo'_ Use Schedule shall indicate the percentage of pool area to be used by each for purposes of apportioning costs of operation and maintenance. The pool facility shall be available for use by aqO/ -6- -I the School District for a period of not less than thirty per- , School Die- cent (308) of its total annual operating houeTcentage shall be trict use or the facility in excess of this p by mutual agreement of the parties as reflected in the Pool Use Schedule. The parties agree that the City shall keep and maintain records o` actual pool usage by each party, for all usage dur- ing, as well as outside of, normal operating hours. The City shall provide such records to the School ed Dovedlby the School monthlyct on a basis. Said recordesctedato withinll be mthirty (30) days of receipt. District if not obj The parties further agree that in the firs a pool shall be t fiscal year of operation, the normal hours ofoperation h day, Monday through Friday, fror.. 6:00 A.M. to 9:00 P.M., each 10:00 A.M. to 8:00 P.M. on Saturday a he facility by the Ci y on Sunda}. The use of any p unless or by the School District outside of said normal hours of oper- ation shall be deemed the by rxcl during ive es chby tt meshat artThe City its use is shared by provide, general su- may provide, but shall not be required to p pervisory or custodial services during exclusive School Dis- trict use of the facility when such use occurs outside of the normal operating ance. The City shall have the 4. O eration and Mainten ool facility. The City responsibility and the exclusive authority for the operation and maintenance of the joint swi Bing pool and maintain the shall have responsibility to Properly and equipment, shall faci'-ity, including the building, 4- have responsibility to provide general supervision o`_ the en- tire facility during normal operating hours, and shall have ds to supervise responsibility to prig periodsgofrexclus exclusive City usehorpshared use of the pool during p use with the School District. The operation of the facility shall be under the general administration �and supervision, responsibof the ilty Manager or the tday he Ctoy of Iowa City, Director of Parks and day operation of the facility to the City Recreation, or such other individual as the City Manager may fror., time to time designate. ro- The School Diersonnelhtolsuoervise usehave the pofsthelpooltbypits Vide appropriate p School Distr students and staff during periods °Theexclusive District shall t use or shared use with the City. x017 -7 - have the sole responsibility for supervision of students and staff during their use of the pool. 5. Budget and Cost Sharing. The parties do hereby agree to annually budget and contribute monies during the term of this Agreement to defray the expense of operating and maintain- ing the joint swimming pool facility. The parties further agree that the City shall have responsibility to budget for and pay all costs and expenses associated with operation and main- tenance of the facility as they accrue, and to act as comptrol- ler in that regard. The School District hereby agrees, for so long as it shall retain the right to occupy and use the facili- ty under the lease, to contribute monies to the City to assist ! in defraying the City's costs and expenses in operating and maintaining the facility, which contributions shall be con- j. sidered to be rental and to constitute consideration for its continued use and occupancy of the facility. The School Dis- trict agrees that it shall be obligated to contribute annually during each fiscal year, as its share of said expenses, an amount equal to thirty percent (30€) of the cost share items identified in the adopted budget for the facility, or a per- centage contribution to those cost share items equal to its actual annual percentage of pool usage, whichever is greater. For purposes of this provision, (a) cost share items shall mean those cost and expense items from the fiscal year budget for the facility which the parties have agreed to share, which cost share items are identified below; and (b) the actual annual percentages of pool usage shall be calculated as shown below. i COST SHARE ITEhS is 1. Supervisor - .45 FTE as assigned to this facility 2. Maintenance Workers - 1.5 FTE as assigned to this facility ! 3. Operating Supplies - Swimming Pool and Joint j Use Facilities 4. Repair and Maintenance Supplies - Swimming Pool and Joint Use Facilities 5. Property Insurance - Fire and Casualty 6. Gas and Electric Utilities 7. Water and Sewer Utilities ! The School District will not be charged with any repairs or supplies relative to the structural parts of the faci:ity in- cluding the swimming pool itself. ! I ! A017 WO ACTUAL ANNUAL PERCENTAGES OF USE 1. The actual annual percentages of use shall be calculated from pool usage records at the end of each fiscal year. During times when the use of the pool is shared, the usage shall be prorated between the parties. 2. Total hours of operation each week will be 92. Total hours of operation each year will be 4,692 (92 hours x 51 weeks = 4,692). If City elects to reduce the hours of operation, the School District's annual use 'percentage will nevertheless be computed as against the hours of operation stated herein. However, if City elects to increase the hours of operation each year, the District's annual percentage use shall be calculated as a percentage of the total annual hours as increased by City. The School District agrees to pay its annual fiscal year contribution in twelve (12) equal monthly payments, each month- ly paymea= equal to 1/12 of thirty percent (304) of the cost share items identified in the adopted budget for the facility for that fiscal year, plus a final payment for that year as calculates and set forth in a reconciliation report as hereaf- ter provided. Each monthly payment shall be made in advance, on or be' -ore the 20th day of the preceding month. During the first `_'-s=al year of pool use pursuant to this Part III, the respective cost shares of the parties, and the School Dis- trict's :mthly payments shall be calculated on the basis of a proposed budget to be determined by the parties. The School District's first monthly payment shall be paid in advance of its use c' the leased premises. The city agrees that at the close of each fiscal year it will pre= -=re a reconciliation report and that it will forward said report to the School District on or before August 31 of each year. Said report shall reflect actual costs and expenses for cost share items in said budget. Said report shall also set fort` the City's and the School District's actual hours of pool usace for the preceding fiscal year, based on pool use records kept by the City. The reconciliation report shall set forth the calculations of each r=rtv's percentage of pool usage for the preceding fis- cal year, which percentages shall be calculated by dividing each party's actual hours of usage for that year by the total ,?o/t7 __T M2 hours of usage by both parties combined during that year, sub- ject to the limitations and restrictions as stated above. To- tal hours of usage shall include hours of usage by the parties outside of normal operating hours. The reconciliation report shall also set forth the calcu- lation of the School District's final payment, which figure shall be calculated by applying the School District's actual annual percentage of pool usage for that fiscal year to the actual costs and expenditures for cost share items for that year, as reflected in said report, less the total amount of School District monthly payments already paid for that year. In the event that the City's actual expenses for cost share items for operation and maintenance of the joint pool facility are less than what was budgeted, and if, after apply- ing the School District's actual annual use percentage to said actual expenses for cost share items, it is determined that the School District has paid monthly payments for said fiscal year which total in excess of the amount it should have paid, then in that event said overpayment shall be reflected in the rec- onciliation report as a refund payment to the School District. The School District shall either approve or object to said reconciliation report within thirty (30) days of receipt there- of. Said report shall be deemed to be approved by the School District if not objected to within said 30 day period. The parties agree that the School District's final pay- menti,or the City's refund payment, as set forth in the rec- onciliation report, shall be due and payable within thirty (30) days after the School District's approval of the reconciliation report. 6. Assignment and Sublease Prohibited. The School Dis- trict's leasehold interest in the joint pool facility, includ- ing its right to occupy and use the facility, shall not be as- signable to any person or entity for any purpose, except to a successor school district after any merger or reorganization may occur, nor shall the School District sublease its right to use and occupy the facility even if only temporarily. The School District's use of the joint pool facility shall be only for School District students, employees, and School District sponsored groups and events. i. Renewal. The School District shall have the option to renew its lease of the facility for four (4) additional pe- riods of five (5) years each upon the same terms and conditions -lo- -7 as provided herein, provided that the School District is not in default of any of the material provisions of the lease at the time that renewal is to be effective. Renewal will be automat- ically effective for each option period unless the School Dis- trict gives written notice to the City of non -renewal at least 180 days prior to the date upon which the initial term of the lease, or any renewal term, is to expire. PART IV. GENERAL PROVISIONS. 1. Declaration of Default and Notice. In the event that either party determines that the other has defaults in the per- formance of its obligations hereunder, the aggrieved party may declare that de_`ault has occurred and give notice thereof to the defaulting party. Notice of default shall be given in writing, shall specify the nature of the default and the pro- vision of the Agreement involved, and shall specify what action is required of the defaulting party to correct the default. The defaulting party shall have thirty (30) days from the date of its receipt of the notice of default to correct the default. If at the end of said thirty (30) day period the default has not, in the opinion of the aggrieved party, been corrected, that party may thereupon pursue its remedies as provided in paragraph 2 hereof. 2. Remedies Upon Default. In the event of default by the School District in its obligation to make contributions to the costs of construction of the joint pool facility, as provided in Part T_I, paragraphs 6 and 9 hereof, or to make contributions to the costs of operating and maintaining the joint pool facil- ity, as provided in Part Iii, paragraph 5 hereof, or a default by the School District in the performance of any material pro- vision of this Agreement, the City may, at its option, after declaring default and giving notice thereof, seek termination of this Agreement or specific performance of its provisions. Unless this Agreement is terminated by agreement of the parties or pursuant to Court decree, the School District shall have the obligations to make contributions to the costs of op- erating and maintaining the joint pool facility during the en- tire term of this Agreement, regardless whether or not the School District continues to occupy and use the facility during the entire term, and the City shall be entitled to specific performance to enforce this provision. In the event of default by the Citv in its obligation to operate and maintain the joint pool facility as provided in Part III hereof, the School District may, at its option, after -11- i declaring default and giving notice thereof, seek termination of this Agreement or specific performance of its provisions. I iIn order to obtain termination of this Agreement or spe- cific performance of its provisions, the party seeking such relief shall, after expiration of the thirty day period follow- ing receipt of notice of default, commence a cause of action for such relief in Iowa District Court in and for Johnson Coun- ty. The petitioning party may seek termination and specific performance as alternative forms of relief in the same cause of action. Nothing in this agreement shall be construed to re- quire the petitioning party to elect its remedy at the time suit is filed, and the petitioning party shall, to the extent permitted by the Court, be allowed to amend its petition to seek other relief, or to seek alternative forms of relief. 3. Effect of Termination. In the event this lease is terminated as provided in paragraph 2 above, the School Dis- trict's right to occupy and use the joint facility shall cease. The City shall thereafter have unencumbered ownership and use of the facility, subject only to the School District's right of entry as provided in Part I, paragraph 5. 4. Indemnity and Hold Harmless. The School District hereby agrees to indemnify, defend, and hold harmless the City, its officers, agents, and employees, against any and all claims, suits, actions, debts, damages, costs, charges and ex- penses, including court costs and attorney's fees, and against all liability for property damage and personal injury, includ- ing death resulting directly or indirectly therefrom, arising from any act of negligence of the School District, either ac- tive or passive, or those of its agents, employees, assigns, or any other person acting on its behalf in supervising use of the joint pool facility and accompanying property by School Dis- trict students, staff, personnel, or invitees pursuant to the terms of, and for the purposes specified in, this Agreement, or arising from School District supervision of any other use of the premises by the School District, its agents, employees, assigns, or any other person acting on its behalf, or arising from the School District's supervision of any other activity which the School District sponsors, suffers or allows to occur on the property. The City hereby agrees to indemnify, defend, and hold harmless the School District, its officers, agents, and employ- ees, against any and all claims, suits, actions, debts, dam- ages, costs, charges and expenses, including court costs and attorney's fees, and against all liability for property damage and personal injury, including death resulting directly or ao/7 -12- indirectly therefrom, arising from any act of negligence of the City, either active or passive, or those of its agents, employ- ees, assigns, or any other person acting on its behalf in the design, construction, operation, maintenance, or general super- vision of public use of the joint pool facility and accompany- ing property pursuant to the terms of, and for the purposes specified in, this Agreement, or arising from any other use of m the premises by the City, its agents, employees, assigns, or any other person acting on its behalf, or arising from any oth- er activity which the City sponsors, suffers or allows to occur on the property. CITY OF IOWA CITY DATED: DATED: /1A - //" 'P4 STATE OF IOWA BY: William J. Ambrisco, Mayor BY: Marian K. Karr, City Clerk IOWA CITY COMMUNITY SCHOOL DIS l Randall W. Jordison, President BY: a.1 Ay- 10 i.Cr�l TJ ald L. Palmer, ecretary ) SS: JOHNSON COUNTY ) On this day of 1986, before me, the undersigned, a Notary Public in and for the State of Iowa personally appeared William J. Ambrisco and Marian K. Karr to me personally known, who, being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of said corpo- ration executing the within and foregoing instrument, that the seal affixed thereto -s the seal of said corporation; that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors; and that the said T -13- William J. Ambrisco and Marian K. Karr as ac such officers - kno;�ledged the execution of said instrument to be the ersvolscar} act and deed of said corporation, by it and by them voluntarily executed. Notary Public in and for the State of Iowa. STATE OF IOWA ) ) SS: JOHNSON COUNTY ) On this 11th day of December the undersigned; a Notary Public in and f 1986, before me, personally appeared Randof Iow all W. Jordison and Jeraldthe State L. Palmer, to me personally known, who, being by me duly sworn, did say that they are the President and Secretary, respectively, of said school corporation executing the within and foregoing in- strument, that no seal has been procured by the said school corporation; that said instrument was signed on behalf of said school corporation by authority of its Board of Directors; and that the said Randall W. Jordison and Jerald L. Palmer as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said school corporation, by it and by them voluntarily executed. Ngtary Public in and for the / State of Iowa. 02/33-01-39